Tom King’s CRM Plus --
Ruminations on "cultural resource management," environmental impact assessment, and related esoteric topics, by a curmudgeon who seldom has anything good to say about anything.

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Tuesday, July 08, 2014

How to Write Off Traditional Cultural Properties: the Gladesmen Report

I recently reviewed a report
prepared for the U.S. Army Corps of Engineers by New South Associates, entitled
You Just Can’t Live Without it:
Ethnographic Study and Evaluation of Traditional Cultural Properties of the
Modern Gladesmen Culture (See http://www.evergladesplan.org/pm/pm_docs/master_rec_plan/gladesmen_study/062411_gladesmen_00-abstract.pdf).I hoped that the report would describe a good
traditional cultural properties (TCP) study that focused on places of concern
to groups of people other than Native Americans.Such studies are rare; although National
Register Bulletin 38 on the identification and documentation of TCPs makes it
clear that any group of people can value such places, there is a tendency to
think of them as the sole property of Indian tribes and Native Hawaiians.

I was deeply
disappointed by the Gladesmen report, and feel obligated to say why.

Who Are the Gladesmen?

The Gladesmen are in
essence the traditional mostly Euroamerican (especially Scots-Irish) rural
residents of Florida’s Everglades. They’re
broadly characterized as a subdivision of the American South’s “Cracker”
culture of self-sufficient rural subsistence farming, fishing, hunting,
gathering and very small-scale industry. Gladesmen comprise the families that have for generations lived in and around
the Everglades, more or less making their livings by hunting alligators and
other game, fishing, plume gathering, moonshining, and small-scale agriculture
(See Simmons & Ogden 2010, Ogden 2011).

The Study

The ethnographic study
of Gladesmen TCPs was commissioned by the Corps of Engineers in connection with
a Master Recreation Plan being developed as part of the Comprehensive
Everglades Restoration Plan (CERP). Apparently
the possibility of National Register eligible TCPs was raised during public
meetings on the CERP, and the Corps contracted with New South to determine
whether any existed. New South
undertook a program of background research and ethnographic interviews to reach
conclusions about whether any Gladesmen TCPs were present. Having identified thirteen candidate sites,
they went through them and concluded that only two were in fact TCPs eligible
for the Register – though they hedge their bets by calling for some to be
analyzed further if some future action threatens them.

Critique

So why did I find the Gladesmen
study so disappointing? Let me try to
explain:

What
Was Evaluated

It is not clear to me
how the thirteen sites studied were selected, or indeed why specific sites were
selected at all. Comments on the draft
report by Palm Beach County Archaeologist Christian Davenport identified a number
of other seemingly relevant locations that should have been considered, as well
as additional informants. New South
breezily dismisses Davenport’s comments as “outside the scope of this
preliminary study.” Exactly what the
study is “preliminary” to is unclear.
What particularly puzzles me is why the authors felt compelled to focus
on specific locations. One clear feature
of Gladesmen culture is the mobility of its participants; they travelled and
still travel all over the Glades. Why
wasn’t the overall landscape evaluated?
By focusing on specific locations (albeit including some linear
properties like roads and streams), it seems to me that the study atomizes the
environment that Gladesmen value, making it easy to devalue its specific parts.

Which is what the report
proceeds to do.

(Mis)understanding
TCPs

Although the authors of
the report have apparently at least looked at National Register Bulletin 38,
there is little evidence that they’ve tried very hard to understand it. Instead, it appears that they have
cherry-picked concepts, and in some cases made them up, to support their
conclusions.

In Chapter II, for
example, on page 10, we are told that:

“(a)n identified historic property usually must
be 50 years old to be considered a TCP.”

This implies that a
place must first be “identified” as an historic property and then considered
for TCP status if it is 50 years old.
This of course stands the evaluation process on its head. A place is a TCP if it is regarded by people
as important in sustaining their traditional cultural values; having recognized
that it has this value, then one applies the National Register criteria
and criteria considerations to see if it is Register-eligible. And of course, “50 years old” is a deeply
simplistic gloss on the actual “Fifty-year rule” laid out in the Register’s
criteria considerations.

The same paragraph
characterizes the “integrity” of a TCP as referring to “a sustained, integral
relationship to traditional cultural or beliefs” and a condition that is “sufficient
to convey significance.” This may be a
clumsy gloss on the Bulletin’s discussion of a TCP’s two kinds of integrity –
integrity of association and integrity of condition – but if so it is a clumsy
one indeed. The reference to a “sustained…relationship,”
for example, is made up out of whole cloth, but neatly sets the authors up for
their subsequent dismissal of eleven of the sites. The allusion to “convey(ing) significance” –
another notion not derived from Bulletin 38 – helps the authors dismiss the
significance of the sites based on their own perceptions (i.e. the perceptions of those to whom the sites do or do not convey things) – never mind those of
the Gladesmen.

“Continuity”
Claptrap

On the same page, we are
told that:

“the most critical element in whether or not a
property represents a TCP is its role in long term and continuous
maintenance of a given culture” (emphasis added).

“Continuity” is a notion
that has no basis whatever in Bulletin 38.
The Bulletin succinctly says, on page 18, that “(t)he
fact that a property may have gone unused for a lengthy period of time … does
not make the property ineligible for the (National) Register.” Let alone ineligible to be a TCP. Continuity as a “critical element” – or indeed
any kind of element – is something that has been made up to justify dismissing
the significance of places from whose use people have been lately
excluded. As many Indian tribes can
testify, the fact that one has been made unable to maintain the traditional use
of a place – through relocation, forcible exclusion, genocide, or other historical
circumstance – by no means renders the place insignificant. Yet the authors of the Gladesmen study elevate
their whole-cloth invention to the status of “most critical element” in
determining whether a place is a TCP. They
go on to explain:

“Because continuity in use plays such an
important role in defining TCPs, changes in a property’s use or association
through time can change the eligibility status of that property. If extensive changes or discontinuity in use
occur through time, a site that has integrity may still be eligible for
recording as a historic property…. But it would not maintain the necessary
level of significance for recording as a TCP.”

This “important role”
that the authors assign to “continuity in use” forms the basis for the rest of
the study’s dismissive “analysis.” But it
is a status assigned by the authors based on no stated authority, and it is
directly inconsistent with the plain language of Bulletin 38.

Inflating
Misstatements

Perhaps following Hitler’s
maxim that if you tell a big enough lie often enough it becomes the truth, the
authors repeatedly reframe and elaborate on their misstatements. On page 103, Chapter VII, for instance, as they set about “identifying
Gladesmen TCPs," they say that:

“(i)t is important to restate here that many
properties associated with Gladesmen Culture may warrant recording as ‘historic
properties’… but not all of these will meet the criteria for recording them
(sic) as TCPs. The NRHP guidelines distinguish
a TCP as a property that not only meets existing criteria as a historic
property … but is also one that represents a continuing association with the (Gladesmen)
culture whose primary importance is its role in maintaining cultural identity
and practice.”

So now a Gladesmen TCP
must not only be eligible for the Register and “represent a continuing
association” (whatever that means), but must have “maintaining cultural
identity and practice” as its “primary importance.” How in the world is anyone supposed to
ascertain whether a place meets all these new and inventive standards? Who, for instance, is supposed to decide
whether a place’s role in “maintaining cultural identify and practice” is “primary?” As opposed to secondary, tertiary, or
quaternary?

Note, too, the reference
to “NRHP guidelines.” What guidelines
are these? Certainly not Bulletin
38. The bibliography also refers to
National Register Bulletin 15; if that bulletin provides advice upon which the
authors base their assumptions, it would have been helpful for them to have
provided a specific citation. But no, we
are simply assured that New South’s case is grounded on “NRHP guidelines.”

The mysterious “guidelines”
are referred to again on page 124, where we are told that:

“NRHP guidelines distinguish a TCP as a property
that not only meets existing (as opposed, one imagines, to nonexistent)
criteria as a historic property … but is also one that represents a continuing
association whose primary importance is its role in maintaining cultural
identity and practice.”

The authors go on to
warn us that:

“(p)roperties will not meet TCP criteria if the
continuity of their use has significantly changed over time, if they do not
retain sufficient integrity, and, most importantly, if they do not contribute
to maintaining Gladesmen Culture as a whole.”

Again, as far as I can tell, New South has made up these standards on the spot, out of thin air.

Who
Sez?

But let’s assume just for a
moment that there really is some National Register guideline that makes
all those preposterous statements. How
would one operationalize it? Notably,
who is to determine whether the use of a place has “significantly changed?” Or whether it retains “sufficient” integrity? “Sufficient” relative to what? And who decides whether a place contributes
to maintaining Gladesmen Culture, particularly “as a whole?”

New South never tells
us, but it becomes abundantly clear that the invariable answer to the question
of “who says” is: you guessed it, New
South. Despite Bulletin 38’s repeated
calls for evaluating the significance and integrity of places with reference to
the views and beliefs of those who value them, the Gladesmen report authors
never miss a beat in skipping from describing properties to evaluating them,
with never a reference that I could find to the views of Gladesmen themselves. Chapter IX presents the study’s “results,”
which the authors unblushingly identify on page 131 as “New South Associates’
findings.”

The
Bottom Line

And what are these
findings? That eleven of the thirteen
properties described just haven’t been “demonstrated” (by whom?) to be TCPs, or
lack “sufficient” information to permit evaluation. Two properties – a duck camp and the site of
an airboat association (already identified by the Corps as eligible for the
Register) are identified as honest-to-gosh TCPs.

Here’s one typical
example of how New South writes off possible TCPs. It happens to be Duck Camp #2, but it could
be any of the others.

“Oral history suggests that this campsite has
been in use by modern Gladesmen since the late 1950s, as well as during earlier
times. However, use of the camp by
regional Gladesmen changed with its ownership by Governor Kirk, and the current
camp cabin was not built until the 1970s.
While the location has a known Gladesmen association that qualifies it
as an historic property, New South does not recommend Duck Camp #2 to the NRHP
as a TCP.”

Just like that. The site is associated through oral history
with Gladesmen use since sometime before the late 1950s but New South in its Olympian
wisdom “does not recommend” it as a TCP.

Why? Well, we’re not told, but maybe it has
something to do with that 1970s house.
But we’re talking about a site here, are we not? Which in NRHP lingo means a piece of real
property regardless of any buildings or structures on it. Or maybe it’s something in the oral history –
maybe people say “naah, we don’t care about that place.” If that’s what they say, it might have been
nice of the authors to mention it. But
New South apparently feels no need to justify its judgments with data; it is
sufficient that it “does not recommend” the place.

The statement does go
on:

“The camp appears to be typical of a mid-century
Everglades backcountry camp that is used by an individual or a small number of
people.”

Is this some sort of
implicit standard? Must the camp be
atypical? Used by more than a “small”
(sic) number of people? We are not
told. We are told, however – in another
unsubstantiated statement of imperious opinion, that:

“Duck Camp #2 does not exhibit a continuing
association with modern Gladesmen Culture as a whole and therefore is not
recommended as a TCP.”

Excuse me? Have the authors not just asserted that Duck
Camp #2 has a Gladesmen association extending back to before the 1950s? Is this somehow not “continuing?” Did Governor Kirk’s ownership sever that
relationship? If so, how? Or is
the failure somehow to reflect association with Gladesman culture “as a whole”
what dooms the camp? The (somewhat)
detailed data on Duck Camp #2 found on pages 156-60 does not clarify.

The rest of the
evaluations are similar. Each briefly
summarizes descriptive data on the site and then states a conclusion,
substantiated by nothing other than New South’s self-assumed authority

Conclusions

What are we to make of
this report? It’s certainly not an
example I intend to cite – except perhaps as an indicator of how not to
evaluate TCPs. But why in the world is
it as it is? Does it give the Corps of
Engineers anything it can really use in designing and carrying out the
CERP? Does it give Gladesmen any help in
preserving these places that, as the report’s title implies, they “just can’t
live without?” Did preparing it
accomplish anything other than to support some New South employees for awhile
and bring New South some overhead?

I don’t know, but I do
know that the report butchers the very notion of traditional cultural
properties, wildly misinterpreting Bulletin 38.
I suspect, too, that it has given the Corps an ostensibly authoritative
basis for writing off the traditional cultural significance of Gladesmen sites –
and perhaps more importantly, of Gladesmen cultural landscapes – as it moves
forward with implementing the CERP.

References

Ogden,
Laura A.

2011 Swamplife:
People, Gators, and Mangroves Entangled in the Everglades. Minneapolis, University of Minnesota Press

Parker, Patricia L. and
Thomas F. King

1990 Guidelines for the
Evaluation and Documentation of Traditional Cultural Properties. National
Register Bulletin 38. Washington DC, National Register of Historic
Places, National Park Service.

12 comments:

Anonymous
said...

We know what NPS said about so-called "TCPs" in 1990. Congress has had the chance the codify that all-inclusive concept. It never has. But here is what Congress DID hand down in 1992:

"Properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiin organization may be determined eligible for inclusion in the National Register" [and] "In carrying out its responsibilties under section 106 a Federal agency shall consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to [these properties]".

So, are the "Gladesmen" members of a federally-recognized Indian tribe or Native Hawiian organization ? No, they are not. Ergo - the Corps had no reason to worry about these so-called "TCPs" - they are not codified in any law or regulation.

You're right. TCP studies and reports for non-Native American groups are "rare". Actually, there shouldn't be ANY. And when you say that "there is the tendancy to think of TCPs as the sole property of Indian tribes and Native Hawaiians" you are right again. That indeed was Congress's sole intent, and it is all that Congress handed down in 1992. Congress could have expanded the term to include any group - such as the Gladesmen - but Congress simply and plainly did not do that.

NPS does not pass laws, Congress does that. A "Bulletin" issued by government employees is not the equivalent of law. And neither ACHP nor NPS have ever issued a regulation on non-Native "TCPs", because they can't - they are not in the law. That said, when you get right down to it, who the heck should ever CARE about NPS's "Bulletin" ? It expresses nice ideas and sentiments, but legally, it means nothing. But Congress's 1992 amendment means a great deal - and it's the law.

Annon, I have to suggest that before you spout off on this subject you learn a little about it, perhaps by reading my discussion of the history of the 1992 NHPA amendment in "Places That Count." The 1992 amendment came about because three federal agencies -- BLM, Forest Service, and (wonderfully) BIA all advised their field offices that they didn't have to pay attention to Bulletin 38 because it was just an NPS publication. Never mind that NPS has all the authority it needs to tell people how to evaluate stuff for the National Register and that agencies are required to attend to their impacts on Register-eligible properties. The tribes got pissed and went to the Hill; the amendment was the result. But the amendment did not say that ONLY tribal TCPs could be determined eligible. There's nothing in law that gets specific about the eligibility of most kinds of properties, be they architectural, archaeological, or whatever; that sort of detail is quite properly left to the responsible agencies -- in this case NPS -- to lay out. If you think that "legally" Bulletin 38 means nothing, you might want to look at some of the case law in which it's figured. I hope you're not providing legal advice to your clients.

If Congress did not specifically include a provision in the law, there is no such provision. If a regulation does not specifically provide for something, there is no "implied" provision. If something is not included in law and regulation, it is excluded. Only a court can address that, or change it. So where are the "Bulletin 38" cases that you mention ? Can you list just a few, where non-Native "TCPs" prevailed decidedly ?

The 1992 amendment was very clear and unmistakable in what it said. Congress acted purposefully and specifically on behalf of Indian tribes and Native Hawaiian organizations. Period. If Congress had intended for all others to be included, they would have written the amendment that way. Government employees cannot sit down at their desks and compose an entirely new provision where they think Congress was remiss, then expect everybody to follow it, just as if their ideas should have the same force of law. If it were all that easy, why bother with laws and rulemakings at all ? Just get some agency friends together, print out a new Bulletin, and wait to see how many people will fall into line with it.

Nobody is disparaging the intent of Bulletin 38. Those were all laudable ideals. The problem is, they still ain't in the law or in any regulation. I grant that NPS and its Bulletin 38 have enjoyed an astonishingly long and prosperous run since 1990. Now it's time for a complete reappraisal and an overhaul of Bulletin 38 - not just an update. And maybe it should be tossed out entirely, since it appears to exceed if not displace the original intent of Congress. Until and unless Congress or the agencies codify it, the 1990 Bulletin, or any new iteration of it, will always remain exactly what it is - a suggested guideline, and therefore optional, not a mandated requirement.

In 1992, Congress acted for places of importance to Tribes and Hawaiians. I find nothing in any law or regulation that grants the same considerations to non-Native entities like the "Gladesmen". So, I think ACOE did more than it really needed to in this case.

Oh, Annon, Annon, what a happy, simple-minded world you live in. I only hope that no one's serious money is riding on your professional advice.

One more time:

1. Congress enacts laws. These have (duh) the force of law.

2. Laws often contain "rulemaking" provisions authorizing and directing executive branch and independent agencies to issue regulations to implement the laws. These too have the force of law.

3. The same agencies often issue guidelines of various kinds to elaborate on their regulations and assist others in their interpretation. These do NOT have the force of law, but they do constitute the official, presumably authoritative, advice of the relevant rulemaking agency, carrying out the duties that Congress directed it to carry out. They tend to be given considerable weight in courts of law.

In the NHPA, Congress assigned rulemaking authority to the Secretary of the Interior, who delegated it to NPS, and to the ACHP -- the first for matters pertaining to the National Register and some other matters, the second for matters pertaining to Section 106.

Both have issued both regulations (e.g. 36 CFR 60 by NPS, 36 CFR 800 by the ACHP).

Both have also issued guidelines; ACHP examples include guidelines on how to deal with archaeological sites under Section 106 and how to consult with Indian tribes and Native Hawaiians. NPS examples include the Secretary of the Interior's Standards and Guidelines for a whole host of things, and the thirty-something National Register Bulletins.

Bulletin 38 is one of those Bulletins. It does not have the force of law, but it is the authoritative advice of the National Register as to how to evaluate TCPs with reference to its lawful regulations.

No, Bulletin 38 is not a "mandated requirement," but an agency that figures to ignore it had better be prepared to explain to a judge what its rationale is for doing so.

And no, I'm not going to go look up court cases for you. I have better things to do with my time than to try (any further) to educate the insistently ineducable. If you can manage it, you might benefit from reading a few of my books on NHPA, TCPs, and related matters. But then again, maybe not. In your own mind, you obviously know it all already.

Incidentally, since publishing this blog post, I have been told by a reasonably reliable source that the actual author of the Gladsmen report concluded that most or all the sites were eligible for the Register as TCPs, but the report was altered after it was turned in. I have no way to verify this allegation, but it would help account for the report's strange inconsistencies.

You are right Tom, the ethnographer did conclude that most of the sites studied should be recommended eligible. These recommendations were included in the first draft of the report. In subsequent drafts, these recommendations were changed without the knowledge of the ethnographer.

"is anyone from the project sponsor or the responsible company reading any of this?"

Are you visiting Washington or Colorado? How dare anyone imply that a CRM firm would alter professional recommendations made by an employee qualified to make them simply to make a client happy? No RPA slinging ACRA founding member would ever do such a thing.

Tom - Given the title of your original post, I wasn't surprised (unfortunately) to read the points you raised. But the allegation that the report was changed after submittal raises this to a whole new level. I see it's been a few days with no further comments/updates, but I'm very interested to see how this plays out.

Perhaps needless to say, New South Associates and the Corps of Engineers are maintaining an imperious silence about all this. After all, why should they respond to a mere civilian? I HAVE been contacted by a member of the Gladesmen community, however, who says the story the Gladesmen have been told is that "a general" directed that the report's conclusions be changed. To which New South, presumably with fine attention to its professional ethical standards, said "yessir."

So what's the rest of the story? Has the Corps and SHPO reached consensus on eligibility? Has the Corps determined the effect? Is CERP being conducted under a PA and does the ACHP have a role in any of this? Can the Gladesmen appeal to the SHPO for support?

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Welcome to Tom King's CRM Plus

Welcome to my blog on topics related to "cultural resource management," whatever that may mean to you or me. I hope you find some interest in what you read here, that you'll add your own contributions, and that you'll encourage others to have a look. Thanks!

About Me

Thomas F. King holds a PhD in anthropology from the University of California Riverside (1976), and has worked since the 1960s in the evolving fields of research and management variously referred to as heritage, cultural resource management, and historic preservation. He is particularly known for his work with Section 106 of the U.S. National Historic Preservation Act, and with indigenous and other traditional cultural places.

King is the author and editor of ten textbooks and tradebooks (See http://www.amazon.com/Thomas-F.-King/e/B001IU2RWK/ref=sr_tc_2_0?qid=1353864454&sr=1-2-ent) as well as scores of journal articles, popular articles, and internet offerings on heritage topics.His career includes the conduct of archaeological research in California and the Micronesian islands, management of academy-based and private cultural resource consulting organizations, helping establish government historic preservation systems in the freely associated states of Micronesia, oversight of U.S. government project review for the federal government’s Advisory Council on Historic Preservation, service as a litigant and expert witness in heritage-related lawsuits, and extensive work as a consultant and educator in heritage-related topics. He is the co-author of the U.S. National Park Service's government-wide guidance on "traditional cultural properties" (TCPs; see http://www.nps.gov/nr/publications/bulletins/pdfs/nrb38.pdf). He occasionally teaches short classes about historic preservation project review, traditional cultural places, and consultation with indigenous groups, and consults and writes as TFKing PhD LLC. Current major clients include several American Indian tribes and the U.S. Department of Veterans Affairs.